Sexual Assault Communications Privilege - ALRC

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27. Evidence in Sexual Assault Proceedings
Sexual assault communications privilege
27.99 Sexual assault
communications are communications made in the course of a confidential
relationship between the
victim of a sexual assault and a counsellor. The
defence may seek access to this material to assist with their preparation
for
trial and for use during crossexamination of the complainant and other
witnesses.
27.100 From the mid1990s, ongoing reform of sexual assault laws and procedure
has included the enactment of
these communications.[123] Every state and
legislation to limit the disclosure and use of territory—except Queensland—
communications.[124]
now has specific legislation protecting counselling
27.101 The sexual assault
communications privilege has been considered by a number of law reform
bodies, including
MCCOC,[125] the VLRC,[126]
and by the ALRC, VLRC and NSWLRC in ALRC Report 102.[127]
These reports have
generally taken the view that the privilege serves the
important public interest of encouraging people who have been
sexually
assaulted to seek therapy, and may also encourage people who are sexually
assaulted to report the crime to the
police.[128]
Current law
27.102 Models of a sexual assault communications privilege differ markedly. Provisions
may be formulated either as a
privilege or as an immunity. A ‘privilege’ is a
right to resist disclosing information that would otherwise be required to
disclosed.[129] An immunity prevents the disclosure of
be certain information in court proceedings, generally when the
nondisclosure outweighs the public interest in disclosure.[130]
public interest in
27.103 For example, the NSW provisions operate as a privilege—a person can
object to producing a protected confidence
on the ground that it is privileged;[131]
but the primary protected confider (the victim of a sexual assault) can consent
to
disclosure.[132] The South Australian
provisions are formulated as an immunity, stating that sexual assault
interest immunity’.[133] The immunity
communications are ‘protected from disclosure in legal proceedings by public
waived by participants in the protected communication.[134]
cannot be
27.104 For simplicity, the discussion below uses the term ‘privilege’ to refer
to both models for protecting sexual assault
communications from disclosure in
court proceedings.
27.105 Other points of divergence are whether the privilege is qualified or
absolute; and whether the privilege applies
in preliminary criminal
proceedings, such as committal proceedings.
27.106 The privilege for communications to sexual assault counsellors under s
127B of the Evidence Act 2001 (Tas)
provides absolute protection for the
communications unless the complainant consents to their production.
27.107 In New South Wales,[135] South Australia,[136]
the ACT[137] and the Northern
Territory,[138] there is an absolute
https://www.alrc.gov.au/publications/27.%20Evidence%20in%20Sexual%20Assault%20Proceedings/sexualassaultcommunicationsprivilege 1/10
prohibition against requiring the production of counselling communications in
preliminary criminal proceedings and
against the use of counselling
communication in such proceedings. Otherwise, the privilege that applies in all
jurisdictions, except Tasmania, is qualified, both in relation to the
production of documents and the use of notes in
evidence.[139]
27.108 One of the main issues relating to the scope of the privilege is that,
in many jurisdictions, the current restrictions
on admission of sexual assault
counselling communications do not prevent a defence lawyer from issuing a
subpoena
requiring a person to produce counselling notes.[140]
As a result, subpoenas are frequently used to ‘require counsellors to
attend
and give evidence or produce notes’ and ‘[p]rivate counsellors who are unaware
that the law protects confidential
[141]
counselling communications may produce
records, rather than appearing in court to resist a subpoena’.
27.109 Other factors that affect the scope of the privilege, and which are
defined or dealt with inconsistently across the
jurisdictions, include:
the scope of the communications protected; [142]
whether preliminary examination by a judicial officer—to
determine questions of leave to produce or adduce protected
mandatory or discretionary requirement; [143]
confidences—is a
ordering production; [144]
the thresholds at which the court must be satisfied before
the public interest balancing test; [145] and

the factors the court must take into account for the purposes of
the express exemptions to the privilege.[146]
Further reform of sexual assault communications privilege
27.110 The harmonisation of sexual assault communications privileges has been
considered by SCAG through the
National Working Group on Evidence. The Working
Group agreed that it is not appropriate to provide for a single model
sexual
assault counselling protection in Australia because of the ‘satisfactory
operation of a variety of protections for
sexual assault counselling
communications and the variation between jurisdictions in criminal practice and
procedure’.
[147]
27.111 Instead, the SCAG Ministers agreed on seven principles (the SCAG
principles) to be applied as the minimum
standard for protection of sexual
assault counselling communications in Australia, if jurisdictions legislate to
restrict the
criminal trials.[148]
disclosure of sexual assault counselling communications in
27.112 In undertaking this Inquiry, the Terms of Reference instruct the ALRC to
be ‘careful not to duplicate … the work
being undertaken through SCAG on the
harmonisation of uniform evidence laws, in particular the development of
model
sexual assault communications immunity provisions’. For this reason, the focus
of the Commissions’
consideration of the sexual assault communications
privilege has been on how they operate in practice rather than on
the harmonisation
of provisions.
27.113 The SCAG principles acknowledge the importance of practical measures
that facilitate the implementation of the
privilege and its protection. For example,
one of the seven principles provides that ‘jurisdictions should consider
adapting court processes, with the aim of limiting inadvertent disclosure of
sexual assault counselling communications’.
[149]
Assisting complainants to invoke the privilege
27.114 As observed during this Inquiry, in practice, the sexual assault
communications privilege may not achieve its
intended policy objective of
protecting the public interest in maintaining the confidentiality of the
counselling
relationship and its therapeutic benefits.[150]
27.115 In 2009, Women’s Legal Services NSW coordinated a project providing pro
bono representation to sexual assault
victims seeking to maintain privilege
over their counselling and medical records. The Sexual Assault Communications
Pro Bono Referral Pilot Project in the Downing Centre (SACP Pilot)—a New South
Wales Local Court—involved the NSW
Bar Association, the Office of the Director
of Public Prosecutions NSW (NSW ODPP) and three private commercial law
firms.
The project aimed to provide a ‘stopgap’ measure for legal service provision,
investigate the operation of the
legislative and procedural reform.[151]
privilege, and identify areas in need of
27.116 Women’s Legal Services NSW has identified the following continuing
problems for victims of sexual assault and
counsellors pursuant to existing
sexual assault communications privilege provisions:
some counselling services do not inform sexual assault victims
that their counselling notes have been subpoenaed;
some counselling services produce material to the court without
raising an objection or claiming the privilege;
some counselling services give sexual assault victims inaccurate
advice about the privilege;
sexual assault victims may not receive written notice of the
subpoenaed documents;
sexual assault victims have difficulty obtaining legal assistance
to uphold their privilege;
sexual assault victims who seek to uphold their privilege often
require legal representation at short notice, and the
legal representation
retained may only gain limited access to relevant materials;
judicial officers permit reliance on improperly obtained
confidences to support arguments about admissibility;
the party seeking access to protected confidences may reventilate
arguments about admissibility before trial judges—
after a judicial officer presiding
at an interlocutory hearing has made a ruling—and trial judges may overrule the
decision;
sexual assault victims have reported feelings of violation due to
the legal processes associated with seeking disclosure
records and seeking to uphold their privilege.[152]
of their counselling
27.117 Many of these problems appear to arise because, while the privilege is
legally that of the participants in the
counselling process,[153]
the privileged documents sought to be produced and admitted belong to
counselling services or
individual counsellors responsible for their creation
whose attitude to disclosure may differ from that of the victim
because of the
different professional and privacy interests at stake.
27.118 A qualified sexual assault communications privilege serves the broader
public interest of ensuring the legal
the complainant.[154] However, sexual assault
system is fair both to the accused and victims, who are unrepresented in
criminal proceedings, may not be in a
position to claim or seek to enforce the privilege.
27.119 This difficulty has generated debate about whether victim advocates
should be employed in the criminal justice
rulings on the sexual assault communications privilege.[155]
process to make submissions as to It is beyond the scope of
the current Inquiry to consider that debate, which
would require detailed consideration of difficulties inherent in
reconciling adversarial system.[156]
the role of a separate legal representative with the current constraints of the
27.120 Complainants, whether represented or unrepresented, may be assisted to
invoke the sexual assault
of the following measures:[157]
communications privilege by implementing some or all
requiring the party seeking production to provide notice in
writing to each other party and if the sexual assault
complainant is not a
party—the sexual assault complainant;
requiring that any such written notice issued be accompanied by a
pro forma fact sheet on the privilege and providing
contact details for
assistance;
educating defence counsel about their obligation to identify
records potentially giving rise to the privilege to encourage
compliance with
any such written notice provisions;
providing counsellors with education about the sexual assault
communications privilege and next steps if they are
served with a subpoena; [158]
requiring that subpoenas be issued with a pro forma fact sheet on
the privilege, providing contact details for legal
assistance;
improving access to free legal assistance about the sexual
assault communications privilege;
requiring that the court issuing a subpoena provide a copy of all
subpoenas to the prosecution;
educating prosecutors: to identify possible claims of the sexual
assault communications privilege arising out of
subpoenas; to inform the court
of any such possible claims of the sexual assault communications privilege
during pre
trial processes; where subpoenas are served at short notice during a
trial, to query short service applications; to inform
the court where documents
containing protected confidences are improperly adduced, admitted or used in
the course
of proceedings;
educating defence counsel generally about the sexual assault
communications privilege with a view to limiting the use
of improperly obtained
protected confidences; and
educating judicial officers about the impact of sexual assault on
complainants, the role of counselling in alleviating
victims’ trauma and the
desirability of encouraging people who have been sexually assaulted to seek
therapy.
Submissions and consultations
27.121 In the Consultation Paper, the Commissions asked what procedures and
services would best assist sexual assault
complainants to invoke the sexual
assault communications privilege, assuming they continue to be unrepresented in
sexual assault proceedings.[159]
27.122 Some stakeholders expressed support for the adoption of the measures
raised in the Consultation Paper to assist
invoke the sexual assault communications privilege.[160]
sexual assault complainants to
27.123 The NSW ODPP submitted that the counselling communications privilege has
not had adequate attention paid to
it by participants in the criminal justice
system in NSW—including the courts, legal practitioners, counsellors, medical
practitioners and organisations holding personal records.[161]
The NSW ODPP noted that the absolute prohibition on the
production of a
document recording a protected confidence in committal proceedings is not
respected in practice.
produced, often without the knowledge of the prosecution.[162]
Rather, subpoenas are regularly issued and documents
27.124 The NSW ODPP stated that complainants involved in the SACP Pilot gave ‘very
positive’ feedback about the
assistance they had received. The ODPP considers
that the SACP Pilot has increased awareness of the privilege and the
complainant’s rights and that legal assistance should be available to
complainants either through a community victim’s
advocacy service or the
relevant legal aid commission. The NSW ODPP identified a number of problems
with the sexual
assault communications privilege, some of which were also
identified by other stakeholders.
27.125 First, the prosecutor’s role in regard to privileged material was
observed to be problematic because of the
potential for conflict with the
prosecutor’s obligations of disclosure. The NSW ODPP considered that it is
inappropriate
for the prosecutor to vet material, advise the complainant and
argue the privilege, although the prosecutor should be
to assist the court.[163]
present for any argument
27.126 Secondly, the subpoena of counselling records puts complainants at risk
of having their place of residence, contact
details disclosed to the court and others without appropriate vetting.[164]
information and other personal
27.127 Thirdly, the NSW ODPP observed that victims of family violence are
particularly susceptible to the subpoena of
counselling records because the
offender’s knowledge of the victim enables them to identify potential sources
of personal
information. This can result in the issuing of multiple subpoenas,
which can be perceived as an attempt to intimidate
the victim.
27.128 Fourthly, late notice of the return date of a subpoena was a consistent
problem encountered by the SACP Pilot
and presented particular problems when
this date was close to the scheduled trial date. In some instances, the
privilege.[165]
complainant must choose between proceeding with the trial or claiming the
27.129 The NSW ODPP suggested that:
stringent procedures need to be adopted and adhered to by the
Court in regard to subpoenas;
where counselling notes are subpoenaed, there should be mandatory
notification of the ‘other party’, so that, for
instance, the prosecution has
the opportunity to ask that access is not granted until such time as the
complainant has
been notified; and
that subpoenas are issued in a timely way.[166]
consideration should be given to introducing provisions to ensure
27.130 The Magistrates’ Court and Children’s Court of Victoria observed that
the application of the privilege to civil
proceedings, which may be related to
criminal proceedings, has prevented ‘backdoor’ impermissible access to
confidential communications. In the Courts’ experience, difficulties with the
operation of the privilege in practice arise
more commonly where access is
sought from individual health professionals, as opposed to sexual assaultspecific
service providers. Centres Against Sexual Assault (CASA) are often represented
and the complainant’s views are put
before the court either by the prosecution or
by the CASA.
27.131 The Courts observed that particular difficulties arise where access is
sought to departmental records, particularly
where child protection issues
arise in relation to the complainant. The Courts suggested that it may be
appropriate to
require human services departments to categorise their material
and be legally represented in relation to any subpoenas
to which the department
is required to respond.
27.132 The Courts expressed support for an approach that ensures that all
stakeholders’ legitimate interests are put
before the court and that minimises
the potential for the subpoena of counselling records to operate as a ‘fishing
exercise’.[167]
27.133 Other stakeholders also expressed views about how to improve the
operation of the privilege in practice for
sexual assault complainants. For
example, the Women’s Legal Service Queensland supported the development of
processes to better enable unrepresented people to assert the privilege.[168]
The National Association of Services Against
Sexual Violence (NASASV) suggested
that measures should target third parties who hold confidential records to
ensure
that they are informed about the communications privilege.[169]
The Canberra Rape Crisis Centre supported absolute
unless the complainant consents to their production.[170]
protection of communications
Commissions’ views
27.134 The SCAG National Working Group on Evidence found that the varying
models for protecting the confidentiality
are operating satisfactorily.[171] The Commissions are,
of sexual assault counselling communications however,
unconvinced by this conclusion.
27.135 While the SCAG principles may assist in harmonising legislative
provisions, the Commissions consider that the
principles do not deal adequately
with the fundamental cause of difficulties with the operation of the privilege in
practice identified by stakeholders in this Inquiry. That is, while the
privilege is legally that of the participants in the
counselling process,[172]
the documents subject to the privilege belong to counselling services or
individual counsellors
responsible for their creation, and it is to these
parties that subpoenas will be directed. Counsellors may have
professional and
therapeutic reasons to oppose disclosure, but these interests may differ from
the privacy and other
interests of the complainant. Moreover, counsellors are
not always aware of their rights and responsibilities in relation to
subpoenas
issued for the production of counselling communications concerning complainants.
27.136 In the Commissions’ view, more needs to be done to ensure that existing
legislative provisions operate effectively
to protect counselling communications.
In particular, steps should be taken to ensure that complainants are notified, in
a
timely manner, about the subpoena of counselling communications and given
information about their legal rights and
options for accessing legal advice. In
this context, SCAG Principle 4 states that jurisdictions ‘should consider
adapting
sexual assault counselling communications’.[173]
court processes, with the aim of limiting inadvertent disclosure of
27.137 The Commissions recommend that federal, state and territory legislation relating
to subpoenas and the operation
of the sexual assault communications privilege
should ensure that the interests of complainants in sexual assault
proceedings
are better protected, including by requiring:
parties seeking production of sexual assault communications, to
provide timely notice in writing to the other party and
the sexual assault
complainant;
that any such written notice be accompanied by a pro forma fact
sheet on the privilege and providing contact details
for legal assistance;
that subpoenas be issued with a pro forma fact sheet on the
privilege, also providing contact details for legal assistance.
27.138 Education and training to improve awareness about the existence of the
privilege and how it may be asserted
would also assist in this regard. Bodies
such as the Law Council and NASASV (the peak body for organisations who work
with victims of sexual violence) may be appropriate bodies to pursue such an
initiative. Judicial officers may also
benefit from greater awareness of the
privilege and how it may be asserted.
27.139 The release of the evaluation of the SACP Pilot may provide an opportunity
for consideration by governments
and law reform bodies of other measures that might
be taken to improve the operation of the sexual assault
communications
privilege.
Recommendation
27–8 Federal, state and territory legislation and court rules
relating to subpoenas and the
operation of the sexual assault communications
privilege should ensure that the interests of complainants in sexual
assault
proceedings are better protected, including by requiring:
(a) parties seeking production
of sexual assault communications, to provide timely notice in writing to the
other party
and the sexual assault complainant;
(b) that any such written
notice be accompanied by a pro forma fact sheet on the privilege and providing
contact details
for legal assistance; and
(c) that subpoenas be issued
with a pro forma fact sheet on the privilege, also providing contact details
for legal
assistance.
Recommendation
27–9 The Australian, state and territory governments, in
association with relevant non
government organisations, should work together to
develop and administer training and education programs for judicial
officers,
legal practitioners and counsellors about the sexual assault communications
privilege and how to respond to a
subpoena for confidential counselling
communications.
[123]
M Heath, The Law of Sexual Offences Against Adults in Australia (2005), prepared for the Australian Institute of
Family Studies, 15.
[124] For
current provisions see: Criminal Procedure Act 1986 (NSW) ch 6 pt 5 div 2; Evidence (Miscellaneous
Provisions) Act 1958 (Vic) pt 2 div 2A; Evidence Act 1906 (WA) ss 19A–19M; Evidence Act 1929 (SA) pt 7 div 9;
Evidence Act 2001 (Tas) s 127B; Evidence (Miscellaneous Provisions) Act 1991 (ACT) pt 4 div 4.5; Evidence Act 1939
(NT) pt VIA. Some jurisdictions also provide for a ‘professional confidential relationships privilege’ capable of applying
to sexual assault counselling communications: Evidence Act 1995 (Cth) ss 126A–126F; Evidence Act 1995 (NSW) ss
126A–126F.
[125] Model Criminal Code Officers Committee—Standing Committee of AttorneysGeneral, Model Criminal Code—
Chapter 5, Fatal Offences Against the Person: Discussion Paper (1998).
[126] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.71]–[4.98].
[127] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform
Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [15.45]–[15.84].
[128] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.71].
[129] For
example, common law (and statutory) privileges against selfincrimination,
client legal privilege,
parliamentary privilege and the privilege in aid of settlement:
Australian Law Reform Commission, Making Inquiries:
A New Statutory Framework, Report 111 (2009), [3.20].
[130] Ibid, [3.20]–[3.22]. See also, J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 108–109.
[131]Criminal Procedure Act 1986 (NSW) s 298(1).
[132] Ibid s 300.
[133]Evidence Act 1929 (SA) s 67E(1).
[134] Ibid s 67E(3).
[135]Criminal Procedure Act 1986 (NSW) s 297.
[136]Evidence Act 1929 (SA) s 67F.
[137]Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 57.
[138]Evidence Act 1939 (NT) s 56B.
[139] See
also, Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32C; Evidence Act 1906 (WA) s 19C.
[140] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.74].
[141] Ibid.
[142] See,
eg, Evidence Act 1906 (WA) s 19A, cf Evidence Act 1929 (SA) s 67D.
[143] See,
eg, Criminal Procedure Act 1986 (NSW) s 298(1)(a), cf Evidence (Miscellaneous Provisions) Act 1958 (Vic) s
32C(6).
[144]
See,
eg, Criminal Procedure Act 1986 (NSW) s 298(3),(4), cf Evidence Act 1906 (WA) s 19E.
[145] See,
eg, Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32D(2) cf Evidence Act 1929 (SA) s 67F(5)–(6).
[146] See,
eg, Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32E cf Evidence Act 1939 (NT) s 56F.
[147] Australian Government AttorneyGeneral’s Department, Submission FV 166, 25 June 2010.
[148] Standing Committee of AttorneysGeneral, Communiqué, 7 May 2010.
[149] Ibid.
[150] Women’s Legal Services NSW, Consultation, Sydney, 20 January 2010.
[151] Women’s Legal Services NSW, Submission FV 182, 25 June 2010. At the time of writing, an evaluation report for
the SACP Pilot was being prepared by Women’s Legal Services NSW.
[152] Women’s Legal Services NSW, Consultation, Sydney, 20 January 2010.
[153] For
example, as the ‘protected confider’ who made the ‘counselling communication’: Criminal Procedure Act 1986
(NSW) ss 295, 296. This may include the sexual assault victim, the person who provides the counselling service, and
those present to facilitate the counselling process, such as a nonoffending parent.
[154] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform
Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [15.81].
[155] See,
eg, Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to
Sexual Assault: The Way Forward (2005), 179–180.
[156] The
NSW Criminal Justice Sexual Offences Taskforce observed that while ‘there may
be some merit to utilising
independent legal representation in matters arising
under the sexual assault communications privilege, as this is a
privilege that
belongs to the complainant, the proposal, as it currently stands, appears to
create more problems than it
may solve’: Ibid, 180.
[157] These
proposed practices reflect the views of Women’s Legal Services NSW as contained
in: Women's Legal
Services NSW, The NSW Sexual Assault Communications Privilege: Current Procedure and Issues for Reform:
Submission to the NSW AttorneyGeneral’s Department (2008).
[158] See,
eg, Women’s Legal Services NSW, Counsellors and Subpoenas: A Practical Guide for Counsellors Served
with Subpoenas (2004).
[159] Consultation
Paper, Question 18–5.
[160] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission
FV 186, 25 June 2010.
[161] Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.
[162] The
DPP NSW noted that one District Court Judge, on hearing an argument for
privilege, observed: ‘again nobody
paid any attention to the legislation and
access was granted to those records [of a psychiatrist treating a complainant
as a
result of an assault] which is precisely the situation that the
legislation is designed to avoid’: Ibid.
[163]
Women’s
Legal Service Queensland similarly noted that the involvement of prosecutors in
a claim for the privilege
is limited: Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.
[164] This
concern was also expressed by a victim of family violence who related their
experience with the subpoenaing
of counselling records during court
proceedings: Confidential, Submission FV 14, 5 November 2009.
[165] Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.
[166] Ibid.
[167] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.
[168] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.
[169] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.
[170] Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010.
[171] Australian Government AttorneyGeneral’s Department, Submission FV 166, 25 June 2010.
[172] The
sexual assault victim who is counselled, the person who provides the
counselling service and those present to
facilitate the counselling process,
such as a parent.
[173] Standing Committee of AttorneysGeneral, Communiqué, 7 May 2010, 10.
Family Violence A National Legal Response (ALRC Report 114)
Table of Contents:
Terms of Reference
List of Participants
Executive Summary
List of Recommendations
1. Introduction to the Inquiry
2. International and Constitutional Settings —The Context for Reform
3. Framework for Reform
4. Purposes of Laws Relevant to Family Violence
5. A Common Interpretative Framework — Definitions in Family Violence Legislation
6. Other Statutory Definitions of Family Violence
7. Other Aspects of a Common Interpretative Framework
8. Family Violence and the Criminal Law—An Introduction
9. Police and Family Violence
10. Bail and Family Violence
11. Protection Orders and the Criminal Law
12. Breach of Protection Orders
13. Recognising Family Violence in Offences and Sentencing
14. Homicide Defences and Family Relationships in Criminal Laws
15. Family Law Interactions: An Introduction
16. Family Law Interactions: Jurisdiction and Practice of State and Territory Courts
17. Family Law Interactions: Jurisdiction and Practice of Federal Family Courts
18. Evidence of Family Violence
19. The Intersection of Child Protection and Family Laws
20. Family Violence, Child Protection and the Criminal Law
21. Family Dispute Resolution
22. Confidentiality and Admissibility
23. Intersections and Inconsistencies
24. Sexual Assault and Family Violence
25. Sexual Offences
26. Reporting, Prosecution and Pretrial Processes
27. Evidence in Sexual Assault Proceedings
Introduction
Evidence issues
Sexual reputation and experience
Sexual assault communications privilege
Expert opinion evidence and children
Tendency and coincidence evidence
Relevance and consent
Relationship evidence
Evidence of recent and delayed complaint
28. Other Trial Processes
29. Integrated Responses
30. Information Sharing
31. Education and Data Collection
32. Specialisation
Appendix 1. List of Submissions
Appendix 2. List of Agencies, Organisations and Individuals Consulted
Appendix 3. List of Abbreviations
Table of Legislation
Australian Law Reform Commission Tel. +61 (0)2 8238 6333

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the public interest balancing test; [145] and

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